10 winning strategies to apply in your next arbitration

With increasing delays in the setting of trials in the superior courts, mediators and arbitrators are seeing more cases proceed through the arbitration process. This, and some experiences from a recent arbitration, got me thinking that an update on winning strategies for arbitration might be timely. Here is my "top 10" list.

1. Review Your Arbitration Agreement

The arbitrator's jurisdiction, scope of award and arbitration protocol depends almost entirely on the terms of your arbitration provision. For example, does your arbitration agreement provide that the arbitrator must follow the law and apply the Rules of Evidence, or is it silent on these subjects (in which case the arbitrator is free to do substantial justice to the parties even if his or her award conflicts with legal principles). Does your arbitration agreement provide that the prevailing party is entitled to recover the costs of arbitration? If not, each side will have to bear their own costs (CCP 1284.2). Is there a venue provision, or a limit on the time to be spent in arbitration, or a limit on what issues the arbitrator can decide or the order in which they must be decided? And, is there an attorneys' fees provision? If so, the arbitrator will usually need to issue an interim award with respect to liability and damages and a final award addressing attorneys' fees after the parties submit post-arbitration evidence and argument on the fees.

2. Who Is the "Right" Arbitrator?

Think about your own "style." Are you a person who is more formal or are you more informal? Do you prefer to present a "bare bones" "cut to the chase" case, or do you prefer to paint a picture using a thousand brush strokes? Does your case have emotional appeal or is it a case that depends on the careful application of dry legal principles? What is the style of your opponent? Who are your important witnesses - are they people who have "issues" such as language difficulties, difficult personalities, credibility issues, or issues including intangibles such as physical appearance (gang tattoos for example). Does your case require subject-matter expertise or could an arbitrator with basic business, personal injury, employment or real estate experience understand and appreciate your case? All of these issues have a direct bearing on who you select as arbitrator. If you are informal, perhaps a retired judge might not be best. If your witness looks like an escapee from Haight-Asbury in the 1960s, perhaps an arbitrator who is known to be politically conservative might not be your first choice.

3. Establish Credibility

As the old saying goes: "You only get one chance to make a first impression." Here's how to create a good first impression: Know your case. Be professional and courteous. Try your best to avoid big fights over small issues, either with the arbitrator or your opposing counsel. When participating in a scheduling conference, know in advance when you and your witnesses can be available so that you can schedule the arbitration without the need for follow up calls/conferences after you "check with your client." Try to avoid involving the arbitrator in discovery battles. Always take the high road. Submit briefs in a timely manner. Ensure that your written materials are concise and accurate (nothing diminishes your credibility more than mis-citing a case, misrepresenting a fact or even having typos in a brief). Always try to be prepared. Be on time. Have your witnesses available when they are needed. Look and act professional.

4. Determine What Is Important

Make important facts and important documents stand out. Not every fact or every document is important to the arbitrator's decision-making process. Even in cases with many documents, it is usually the case that only a few are really important. The rest might be helpful for background or other reasons, but they are rarely central to the decision. Not every fact from every witness has equal importance. But if you treat them all the same way, the important facts get lost in the background. It is especially critical to focus on how to deal with bad facts in your case and bad facts in the opponent's case. Don't ignore bad facts in your case. Recognize that they exist and develop a strategy to deal with them. Highlight the bad facts in the other party's case in your brief and opening statement. Make these bad facts your central focus: "We should prevail in this case because their claim is barred by the statute of limitations." "We should prevail because the defendant admitted in writing that there was nothing wrong with the product that he bought from us." "We should prevail because we have impeached his testimony on the most critical factual issue in the case." In your opening statement, consider saying something like: "These are the critical facts that support our case. These exhibit numbers are the critical documents that support our case and I would like you to pay special attention to them during my questions. With your permission, I would like to remind you of those exhibits when we get to the questions."

5. Have Your Documents Organized.

You should have the following notebooks containing all the exhibits: One for you, one for opposing counsel, one for the witness and one for the arbitrator. Make sure that the pages are Bates-numbered or otherwise individually numbered. On the arbitrator's copy, highlight the portion of the exhibit that's most important. Email "trains" should be organized chronologically, not last email first.

6. Present the Case Efficiently.

By the time you start the proceedings, the arbitrator will have already have heard the facts informally, have read the arbitration briefs and will have a good overall understanding of the factual and legal issues. It usually isn't necessary to explain the whole case from A-to-Z through testimony, but your essential task is to tell a convincing and interesting story. Your story will be more convincing and more interesting if you concentrate on the important parts. In many arbitration proceedings no depositions will have been taken. The actual arbitration is not the place to start taking depositions. Don't start your questioning of a witness or the opposing party with deposition admonitions (yes, I have seen this done). Unless it's important, don't ask for the background and experience of the witness - ask the witness questions about the important issues. Have the documents that support the witness or impeach the witness readily available. There's a difference between a cross-examination and a deposition. The former can be effective. The latter is usually boring and unhelpful. Good cross-examination is brief and to the point. Even good cross examination rarely leads to an "Aha!" moment. Don't prove a particular point multiple times, with multiple documents and multiple witnesses. Some studies have concluded that if you have two witnesses testify to the same thing, the listener concludes that you have done so because you don't think that the first witness was persuasive - it ends up diminishing the credibility of your own witnesses.

7. Listen to the Arbitrator's Questions and Directions.

Most arbitrators ask questions. In fact, they usually ask the painful questions that the lawyers prefer not to ask. The arbitrator's questions provide you with an insight into the arbitrator's concerns about the facts and law, although they don't always provide a clear signal as to the arbitrator's conclusions. If you are unsure, you can ask: "Is this an area that you would be interested in hearing more about?" Similarly, when the arbitrator says something like: "Why do I need to know this?" or "Perhaps you could wrap this up," that's a pretty clear signal that your area of inquiry is not important or that you have made your point. If you feel that it's essential to ask more questions, tell the arbitrator: "I need to ask only one or two questions to tie this area together and I hope you will indulge me."

8. Keep Objections to a Minimum.

In an arbitration where the rules of evidence don't apply, most objections are going to be overruled. Most documents will be admitted without the need to provide an elaborate foundation (this is something that should be discussed at the outset-many arbitrators will ask the parties to stipulate that all the exhibits are in evidence to streamline the proceedings). If you feel that you must object, let the arbitrator know that you are not basing your objection on the rules of evidence, but you have other concerns, such as the concern that the evidence may be misleading to the arbitrator or that the direction of the inquiry is going to consume unnecessary time and energy on the part of all concerned.

9. Recognize that an Arbitration Proceeding Is a Continuously Evolving Activity.

You will have a plan for your case. However, like in war, once the fighting starts, sometimes even the best plan becomes useless. An arbitration proceeding evolves - a witness says something that is better, or perhaps worse, than expected. Your opposing counsel makes an argument that you didn't expect. An argument that you thought was specious seems to be resonating with the arbitrator. All of these things can and do occur. Most importantly, it's usually the case that a witness will say something and you will recognize that it just doesn't sound right, or it just doesn't make sense. Or it's such an obvious stretch of the truth that it destroys the credibility of the witness. You have just found a critical weakness in the other party's case. Whatever your original plan might have been, now is the time to readjust your thinking and focus on this critical weakness. Here's the important thing to understand: In many (probably most) arbitrations, it's the "one thing" that either makes or destroys a case. There are many examples, but they all lead to the same result: The critical weakness usually drives the arbitrator to his or her decision in the case. While the "mass" of evidence may be important, it's nearly always the preposterous or totally implausible, or completely unreasonable, or patently incredible that drives the decision. Your job is perceive when that has occurred and to capitalize on it throughout the rest of the proceedings.

10. Write Your Closing Brief as if It Was the Arbitration Award.

For all arbitrators the process of writing the award is difficult and time-consuming. There are pages and pages of notes, perhaps hundreds of pages of transcript, often hundreds of exhibits and multiple witnesses. There are many dates, some of which are key and some not. Most "reasoned" awards have a format: an overview of the dispute, a recitation of the facts, a statement of the legal claims, and analysis of the legal claims and facts, and a conclusion in the form of an award. Your closing brief should follow the same format, with references to the testimony and supporting exhibits. Write the brief in the same manner as you would prefer to see it show up on your desk in the form of the arbitrator's award. Remember that the award might be reviewed by a superior court judge. That judge should be able to determine solely from your brief (meaning, the award that you want the arbitrator to issue) the factual and legal basis for the award and it should convincingly demonstrate why that award is correct.